KARACHI, March 21: The Sindh High Court has ruled that a malafide order or an order in defiance of the obligations of the respondents could always be questioned by a civil suit for injunction.

A division bench, consisting of Justice Sabihuddin Ahmed and Justice Ali Aslam Jaferi, held this while allowing the appeal of a plaintiff, Habibur Rahman, against the order of a single-judge bench on the original side of this Court of March 22, 2001, whereby the appellant’s application for interim relief had been dismissed and the plaint was also rejected under Order VII Rule 11 of CPC.

The division bench also set aside the impugned order and remanded the suit to the single judge for a decision in accordance with law within a short period.

The appellant is a civil servant working as executive engineer in the communications and works department. His grievance was that he had been ignored for promotion by the selection board and his seniority had not been respected.

The appellant filed a suit on the original side of this Court seeking a declaration that the decision of the Selection Board be held null and void and a direction that his fitness for promotion be re-determined in accordance with the current promotion policy. He also sought interim relief by way of restraining the respondents from implementing the recommendations of the Selection Board.

Office objections as to the maintainability of suit were raised and the learned single judge, while deferring consideration of the objections, ordered issuance of notice to the respondents and passed ad-interim orders restraining a respondent from issuing notification for promotion. Through an elaborate judgment after referring to several reported cases, the single judge held the suit to be barred by article 212 of the constitution, resulting in the rejection of the plaint and dismissal of the application for interim relief.

Aqil Awan, counsel for the appellant, contended that the findings of the single judge were wrong in law inasmuch as the aforesaid constitutional provision barred the maintainability of suits and other proceedings before the courts only when the matter fell within the jurisdiction of a service tribunal.

The counsel argued that the single judge had erred in holding that the suit was hit by article 212 of the constitution as the matter related to terms and conditions of service. He contended that article 212 (2) did not bar the jurisdiction of courts in all matters pertaining to terms and conditions of civil servants, but only to such matters to which the jurisdiction of the tribunals established under article 212 (1) extended.

He submitted that the proviso (b) to section 4 of the Sindh Service Tribunal Act clearly stipulated that no appeal would rest with a tribunal against an order or a decision of a departmental authority determining the fitness of a civil servant to be promoted to a higher post.

Justice Ahmed, who authored the judgment, nevertheless, agreed with the single judge to the extent that the question of following a particular promotion policy might be a matter germane to terms and conditions of service.

Nevertheless, the bench was unable to subscribe to the view that this fact by itself would attract the application of article 212 of the constitution and fond a great deal of force in the contention of counsel Awan.

The court held that in view of the specific provisions of the proviso (a) to section 4(i) of the Sindh Service Tribunal Act barring the Tribunal from entertaining appeals against determination of fitness for promotion and the authoritative pronouncement of the Supreme Court, it was constrained to hold that the view of the single judge to the effect that the appellant had a remedy before the Service Tribunal, and the suit was barred by article 212 of the constitution was unsustainable.

The court was of the view that the counsel for the respondents appeared to be right in contending that the appellant could not claim a vested right to be promoted. Section 42 of the Specific Relief Act enabled a plaintiff to seek a declaration as to his legal character or right as to property.

Justice Ahmed held that even if the appellant was not entitled to any declaratory relief an injunction could always be granted to prevent the breach of an obligation on the part of the respondents. The main fact was that the appellant had not asked for an injunction as independent relief but only sought the same by way of consequential relief to the declaration prayed for would be of little consequence.